MEDIATION

.
MEDIATION
• Mediation is a voluntary and confidential dispute settlement mechanism
where the mediator works with the parties to find a solution acceptable
to both the party. Decision making rest with the parties and the mediator
facilitates the process of mediation
• The focus is on the future and the possibilities of workable solutions.
The mediator has to use psycho­logical and communication skills in order
to understand the parties and influence them to agree on a single
solution.
• In mediation it is not essential to follow the law alone. Customs, values,
practices, etc can be considered.
• A mediator helps develop new approaches and strategies to address a
situation.
• Disputing parties have full control over the dispute and its outcome.
• Mediation focuses on needs and interests of the disputants to arrive at
feasible and workable solutions. It empowers the parties to come
forward and solve their own problems. The mediator only facilitates
dialogue between the disputants and helps them reach an agreeable
solution.
• The object of the process is to reduce acrimony and posturing,
enable the parties to realize and understand their priorities and
interests and steer them towards a self-determined and mutually
acceptable resolution.
• Mediation is therefore in a sense empowering the parties to think
for themselves and choosing what is right for them so that they
own the responsibility of arriving at their own decisions.
• There is no legislation governing mediation in general in
India and therefore there is no statutory indication as to
how mediation is to be initiated and conducted by the
parties in general.
• The agreement to mediate is therefore generally an ad hoc
agreement which emerges after a dispute has arisen and where
under the parties jointly agree to refer the existing dispute to
mediation
• process adopted by a specially trained mediator, in substance
turns out to be the conventional structured mediation process
 HISTORICAL DEVELOPMENT
• Existence of mediation in an organised and institutionalised form can be
found as far back as about 3000 years BC in Egypt, Bable and Assyr

Confucianism -Japan, China,

Clan leaders- Chinese
Vietnam, Korea and Thailand.

Buddhism – Asian culture Malay cultural - adab and rukun.

Malaysia - local village headman -

Indonesia - Musyawarah
‘ketua kampong’

mosque - imam Filipinos - Barangays

 .
Ancient Rome - internuncios, interpolator, intercessor,philantropus, medium,
interlocutor, interpres, conciliator and mediator – commercial matters

Ancient Greece- Proxenetas

Europe- Christian clerics

Panchayat system- panchas

Gandhian Theory of conflict Resolution

Gacaca courts of Rwanda- African restorative justice

CHARACTERISTICS OF MEDIATION
• Impartiality- The mediator should not have a material interest in the
outcome.
• Private and Confidential
• Informality
• Party control
• Cost effective
• Time saving
• Maintain relationship
• Emphasis interest
• Control on the outcome
• Nonbinding negotiation
• Forward looking
• Addressing cultural issues
• Agreement is final and binding
• Narrowing issues
• Reality check
STAGES OF MEDIATION
• INTRODUCTION (OPENING STATEMENT)
The mediation process starts with an opening statement wherein the
mediator briefs (Mediator’s Opening Statement) the parties about the
purpose and benefits of mediation, the role of the mediator and the general
details about the mediation process. The opening statement also gives the
parties an opportunity to familiarize themselves with the mediator,
understand the nature and disposition of the mediator and assures the
parties of a confidential, secure and amiable ambiance for a positive
dialogue.
• OBJECTIVES
- Establish neutrality
- Create an awareness and understanding of the process
- Develop rapport with the parties
- Gain confidence and trust of the parties
- Establish an environment that is conducive to constructive negotiations
- Motivate the parties for an amicable settlement of the dispute
- Establish control over the process
• MEDIATOR’S OPENING STATEMENT
- Concept and process of mediation
- Stages of mediation
- Role of the mediator
- Role of advocates
- Role of parties
- Advantages of mediation
- Ground rules of mediation
• GROUND RULES
- Ordinarily, the parties/counsel may address only the mediator
- While one person is speaking, others may refrain from
interrupting
- Language used may always be polite and respectful
- Mutual respect and respect for the process may be maintained
- Adequate opportunity may be given to all parties to present
their views
• JOINT SESSION
- mediator jointly and simultaneously interacts with both the parties, who in
presence of each other open and affirm their respective cases. The parties are
given sufficient time to describe the dispute from their respective angles and
thereafter they are also afforded an opportunity to respond to the case of the
other party, though not from a strictly adversarial perspective.
• The mediator however refrains from generating solutions at this stage and
concentrates on active listening. He however ensures a focused debate so as
to narrow down the controversies while simultaneously attempting to
understand the genesis of the dispute.
OBJECTIVES
• Gather information
• Provide opportunity to the parties to hear the perspectives of
the other parties
• Understand perspectives, relationships and feelings
• Understand facts and the issues
• Understand obstacles and possibilities
• Ensure that each participant feels heard
• CAUCUS
- Caucus is a private meeting which is conducted by the mediator with
each party separately during the course of mediation
- One of the main purposes of caucus is gathering further information
which one party may not initially want to disclose in presence of the
other party
- He may put questions to the parties and counsel them so as to extract
such relevant information.
- Such disclosures will be confidential and it can be utilized by the
mediator for reaching a settlement.
OBJECTIVES
• Understand the dispute at a deeper level
• Provide a forum for parties to further vent their emotions
• Provide a forum for parties to disclose confidential
information which they do not wish to share with other parties
• Understand the underlying interests of the parties
• Help parties to realistically understand the case
• Shift parties to a solution-finding mood
• Encourage parties to generate options and find terms that are
mutually acceptable
PROCEDURE
• Re-affirming confidentiality
• Gathering further information
• Reality testing-Asking effective questions
- Discussing the strengths and weaknesses of the respective
cases of the parties, without breach of confidentiality
- Considering the consequences of any failure to reach an
agreement
• Brain storming
REPEATED JOINT AND PRIVATE SESSIONS
- The mediator may conduct multiple intermittent joint sessions
and caucuses depending upon the facts and circumstances and
requirements and goals.
- The mediator also ascertains and enables the parties to
understand their Best Alternative to a Negotiated Agreement
(BATNA), Worst Alternative to a Negotiated Agreement
(WATNA) and Most Likely Alternative to a Negotiated
Agreement (MLATNA).
• SETTLEMENT
- The final stage of the mediation process involves the mediator working
with the parties to assimilate the mutually acceptable offers and counter
offers to generate an ultimate solution which is agreeable to the parties
- The terms of settlement may be elucidated and clarified so as to obviate
the possibility of any ambiguities. However if complete settlement is not
possible, the mediator may help the parties seek partial agreements or
consider their next steps.
1. Mediator orally confirms the terms of settlement;
2. Such terms of settlement are reduced to writing;
3. The agreement is signed by all parties to the agreement and the counsel if
any representing the parties;
4. Mediator also may affix his signature on the signed agreement, certifying
that the agreement was signed in his/her presence;
5. A copy of the signed agreement is furnished to the parties;
6. The original signed agreement sent to the referral Court for passing
appropriate order in accordance with the agreement;
7. As far as practicable the parties agree upon a date for appearance in court
and such date is intimated to the court by the mediator;
8. The mediator thanks the parties for their participation in the mediation and,
congratulates all parties for reaching a settlement.
NO AGREEMENT
• If a settlement between the parties could not be reached, the case
would be returned to the referral Court merely reporting "not
settled". The report will not assign any reason for non
settlement or fix responsibility on any one for the non settlement.
The statements made during the mediation will remain
confidential and should not be disclosed by any party or advocate
or mediator to the Court or to anybody else
. NEGOTIATION TECHNIQUES
(HIRAM E. CHODOSH)
POSITION BASED INTEGRATIVE
BARGAINING BARGAINING

INTEREST BASED
BARGAINING
• POSITION-BASED BARGAINING
In conducting position-based bargaining, a mediator may point out to the
parties that they cannot both be completely correct in their insistence of a
certain result in their favor. Position-based bargaining can help the parties
to reach a more realistic view of the settlement value of their claims and
defenses (thus narrowing their differences) and to take that settlement
valuation into account as one of their many interests.
• INTEREST BASED BARGAINING
A more realistic settlement value based on weaknesses in their positions,
uncertainty, hidden costs, and the time value of money may be helpful in
bringing the parties closer together, if not in settling the matter altogether.
Effective mediators explore the parties’ interests (beyond their legal
positions).
This requires an exploration of why conflicting parties are fighting over
limited resources and whether there are benefits of particular terms of
settlement that override those of even the most favorable legal outcome.
• INTEGRATIVE BARGAINING
If the parties cannot agree on how to share or cooperate, an effective
mediator may explore integrative bargaining strategies. Integrative
bargaining explores the investment of resources outside those at stake in
the controversy.
NEUTRALIZING COMMUNICATIONS SKILLS
• Establishing Joint Communication
Mediations reestablish joint communication between the parties in three
significant ways.
private mediation, the parties may have to communicate about logistics
for the mediation itself

mediator brings the parties together and in the first joint session

mediator moves from private caucusing into the settlement or

agreement phase, the parties frequently begin to speak directly to one
another.
• Establishing Tone
An effective mediator establishes a positive tone and environment
conducive to settlement by behaving in a professional, confident,
purposeful, open, constructive, and socially engaging manner.
• Active Listening
Both as a necessary tool for effective facilitation and as a way of
acknowledging the viewpoints of each side, active listening is an essential
quality of a good mediator. It allows for a more accurate comprehension
of the dispute, the ability to distinguish dispositive or helpful from
irrelevant or unhelpful comments, positions from interests, less important
interests from higher priority ones. Again, active listening also signals to
the parties that what they have to say is important, and that can encourage
the parties to listen actively to one another as well.
• Acknowledgment
Acknowledgment may be the most critical means to breaking the vicious cycle
of human conflict. To acknowledge the views of one party or another is not to
express any judgment (either positive or negative) but to register that the view
has been heard and understood. Acknowledgment of one party by another
(without apology) often defuses a conflict by allowing the combating parties to
feel that their voice has been heard.
• Neutral Restatements, Summaries, and Word Changes
Mediators listen to and use language effectively to take the edge off volatile
statements and words. They may reframe a statement as neutrally as possible
without trivializing the viewpoint of the speaker. Parties often describe the
factual background in a disorderly fashion, and a mediator’s role is to bring
some order to confusing statements. Finally, an effective mediator will be
careful in the choice of words.
• Sequencing: Agenda Setting; Deferring; Redirecting
- sequencing of what is discussed
- Agenda setting- what to be discussed
- Deferring- postpone the discussion of positions until they explore
interests.
- Redirecting- move in fruitful directions based on input from the parties.
• Changing the Messenger
They can solicit ideas from one side, and communicate those suggestions to
the other, without attribution, and thus without any reactive discounting by
the recipient. Changing the messenger thus can advance acceptance of the
message, and confidential private caucusing allows the mediator to play this
important role of a go-between.
COMMUNICATION IN MEDIATION
• Communication is a process of information transmission. The intention
of communication is to convey a massage. The mediator has the
responsibility of opening the channels of communication and getting
them to talk to him/her and one another.
• PURPOSE
To express our feelings/thoughts/ideas/emotions/desires to other.

To make others understand what and how we feel/think

To derive a benefit or advantage.

To express an unmet need or demand

COMMUNICATION INVOLVES…….
• .
SENDER RECEIVER CHANNEL

DECODING ENCODING MESSAGE

A deficiency in any of these

RESPONSE components would render a
communication incomplete or
defective.
• Communication can be verbal or non-verbal
Verbal communication is transmission of information or message thorough
spoken words. Non-verbal communication refers to the transmission of
information or message from sender to receiver without
the use of spoken words. It includes written communication, body
language, tone, demeanor, attitude and other modes of non-verbal
expression. It is often more spontaneous than verbal communication and
takes place under less conscious control .Therefore, it can provide more
accurate information.
It is important for a mediator to pay adequate attention to nonverbal
communication that takes place throughout the mediation. It is also important for
a mediator to analyze the message sent by the parties through such non verbal
communication.
EFFECTIVE COMMUNICATION
• Use simple and clear language
• Avoid difficult words and phrases
• Avoid unnecessary repetitions
• Precise and logical
• Clarity
• Respond with empathy, warmth and interest
• Eye contact
• Patient, attentive and courteous
• Avoid unnecessary interruptions
• Listening
• Avoid statements which make negative effect.
CAUSES OF INEFFECTIVE COMMUNICATION
• Difference in perception- sender’s message not understood by receiver
• Misinterpretation
• Difference in language and expression
• Poor listening ability
• Lack of patience
• Distortion of valuable information by the third party when the message
is transmitted by sender to receiver through him
BARRIERS TO COMMUNICATION
.
PHYSICAL BARRIERS
• Lack of congenial atmosphere
• Lack of proper seating
arrangement
• Presence of third party
• Lack of sufficient time
EMOTIONAL BARRIERS
• Temperament
• Feeling inferior, superior, guilt
or arrogance
• Fear, suspicion, ego, mistrust,
bias
• Bidden agenda
• Conflict of personalities
 COMMUNICATION IN ADVERSARIAL
SYSTEM AND MEDIATION
ADVERSARIAL MEDIATION
SYSTEM
GOAL To win To reach mutually
acceptable solutions
STYLE Argumentative Collaborative

SPEAK To establish and To explain

convince
LISTEN To find flaws and To understand.
development counter
arguments
COMMUNICATION SKILLS IN MEDIATION

• Active Listening
• Listening with Empathy
• Body Language
• Asking the Right Questions
ACTIVE LISTENING
• Parties participate in mediation with varying degree of optimism,
apprehension, distress, anger, confusion, fear etc. If the parties
understand that they will be listened to and understood, it will help in
trust building and they can share the responsibility to resolve the dispute.
• An active listener listens for both what is said and what is not said.
Active listening requires without unnecessarily interrupting the speaker.
• Hearing and listening- in hearing, one becomes aware of what has been
said. While listening, one also understands the meaning of what has been
said. Listening is an active process.
TECHNIQUES OF ACTIVE LISTENING
1. Summarizing- mediator outlines the main points made by a speaker.
2. Reflecting- confirm they have heard and understood the feelings and
emotions expressed by a speaker.
3. Reframing- help the patties move from Positions to Interests and
thereafter, to problem-solving and possible solutions. It involves the
removal of charged and offensive words of the speaker. Five tasks:-
- converts statement from negative to positive
- converts statements from past to future
- converts statement from positions to interest
- shift the focus from the targeted person to the speaker
- reduce the intensity of emotions
4. Acknowledge- verbally recognizes what the speaker has said without
agreeing or disagreeing
5. Deferring- While deferring a mediator should write down the topic he
has deferred and reinitiate the discussion of the topic at the right time.
6. Encouraging- The mediator can encourage parties when they need
reassurance, support or help in communicating.
7. Bridging- help a party to continue communication.
8. Restate- restates the statement of the speaker using key or similar words
or phrases used by the speaker, to ensure that he has accurately heard and
understood the speaker
9. Paraphrasing- states in his own words the statements of the speakers
conveying the same meaning.
10. Silence- The mediator should feel comfortable with the silence of the
parties allowing them to process and understand their thoughts.
11. Apology- It is an acknowledgment of hurt and pain caused to the other
party and not necessarily an admission of guilt. Parties should be carefully
and adequately prepared by the mediator when a party chooses to
apologize.
12. Setting an agenda- In order to facilitate better communication between
the parties the mediator effectively structures the sequence or order to
topics, issues, position, claims, defences, settlement terms etc. It may be
done in consultation with the parties or unilaterally.
BARRIERS TO ACTIVE LISTENING
• Distractions- Internal or External
• Inadequate time
• Pre-judging
• Blaming
• Absent Mindedness
• Role confusion- The mediator should not assume the role of advisor or
counsels or adjudicator.
• Arguing
• Criticizing
• Counseling
• Moralizing
• Analyzing
LISTENING WITH EMPATHY
• In the mediation process, empathy means the ability of the mediator to
understand and appreciate the feelings and needs of the parties, and to
convey to them such understanding and appreciation without expressing
agreement or disagreement with them.
• Empathy shown by the mediator helps the speaker to become less
emotional and more practical and reasonable.
• Empathy is different from Sympathy.
BODY LANGUAGE
• The appropriate body language of the listener indicates to thespeaker
that the listener is attentive.
• Symmetry of posture- reflects mediator’s confidence and interest
• Comfortable look- increase confidence of parties
• Smiling face – puts the parties ease
• Leaning gently towards the speaker- sign of attentive listening
• Proper eye contact with the speaker- continuing attention
ASKING THE RIGHT QUESTION
• In mediation question are asked by the mediator to gather information or
to clarify facts, positions and interests or to alter perception of parties.
• Timing and context of the questioning are important
• Questions should not indicate bias, partiality, judgment or criticism.
• It should not be like cross-examination
 TYPES OF QUESTIONS

OPEN QUESTION

LEADING
QUESTIONS AND CLOSED QUESTION
COMPLEX
QUESTIONS ARE HYPOTHETICAL
NOT ALLOWED QUESTION
OTHER SKILLS OF MEDIATOR
1. INVESTIGATION
• Subtly analyses parties’ presentations and vigorously searches for
understanding of issue and interest underlying positions
• Asks relevant and insightful question
• Keeps track of new information and changing positions
2. MANAGING INTERACTION
• Earns the confidence of the parties in her or his management of the
process and decisions on procedure
• Makes decisions about order of presentations, caucusing, etc., consistent
with progress towards resolution
• Manages client representative relationships well
• Handles emotional tensions and outbursts so as to encourage progress
towards settlement
3 PERSUASION AND PRESENTATION SKILL
4. MANAGING TENSIONS
• Is able to deflect parties, when unhelpful tension arises, from slipping into
negativity, by appropriate comment, anecdote or other tactic
• Has a wide variety of techniques for directing parties’ attention away from
unproductive presentations or exchanges
5. INVENTIVE AND PROBLEM SOLVING SKILLS
• Avoids premature commitment to solutions
• Helps generate an atmosphere of problem-solving enquiry
• Recognizes underlying interests and problems as against positions or
symptoms
• Pursues avenues leading to collaborative solutions
• Invents or helps parties invent new avenues towards
workable solutions
• Finds novel but practical ways to interrelate parties’ goals
6. STRATEGIC DIRECTION
• Graphs the key issues blocking or promoting movement
• Is able to identify procedures and communications to assist movement
towards resolution of major issues
• Is able to develop an agenda and priorities with the parties
• Is open and flexible and develops a keen sense of direction
for progress without losing the capacity for flexibility
7. POSTSCRIPT SUBSTANTIVE KNOWLEDGE